TaxTMI 
TaxTMI 
2013 (9) TMI 1115
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....s erred in ignoring the material seized during the search? " 3. Briefly stated the facts giving rise to this appeal are that the appellant company is engaged in the business of real estate and is also running a hotel. Search u/s 132 of the Act was conducted on 1.6.2006 in the Vipul Group of cases by way of warrant of authorization dated 1.6.2006 at premises situated at 3rd Floor, Arcade M.G. Road Gurgaon. The AO issued notices u/s 153 of the Act on 1.2.2008 and the assessee filed return on 23.6.2008. Further, notice u/s 143(2) of the Act was also issued on 18.7.2008 and 23.7.2008 by the Assessing Officer for all the assessment years. The AO did not make any addition in the AYs from 2001-02 to 2004-05 and 2006-07 but the Assessing Officer made the addition of Rs. 3,68,00,000 for AY 2005-06 on presumption raised on the basis of documents seized in the case of Moti S. Masand who was a working Director with M/s Vipul Ltd. The aggrieved assessee preferred an appeal before the Commissioner of Income Tax(A)-III, Delhi which was allowed by the impugned order. Now, the revenue is before this Tribunal in this second appeal with the grounds as mentioned hereinabove. 4. We have heard rival a....
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....in clause (b). in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed and the provisions of this Act shall, so far as may be. apply accordingly as if such return were a return required to be furnished under section 139: (b) assess or reassess the total income of six assessment years immediately preceding the assessment year relevant to the previous year in which such search is conducted or requisition is made: It may be appreciated from above that for invocation of valid jurisdiction u/s. 153A. it is sine qua non that search is conducted u/s. 132 of the IT Act, 1961. The fact of the case are reiterated for the facility of ready reference as per hereunder: That a warrant of search bearing number 0746 dated 01-06-2006 was issued to search certain companies viz Vipul Ltd, Vipul Infrastructure Developers Ltd, Abhijeet Trading Co., SV Finance Ltd, White Field Infrastructure Developer Pvt Ltd, Lime Light Towers Pvt Ltd, Millenium Plaza Ltd, Sarvamangalam Building Developers Pvt Ltd, Vipul Motors Pvt Ltd, MAB Finlease Ltd, Vipul Facility Management Pvt Ltd, Vipul Langoroukes Pvt Ltd at 3rd Floor, Global Arcade, MG Roa....
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....ke search in the premises of assessee would amount to initiation of search. The signing of authorization would at best amount to taking of decision by the said authority to initiate search in the premises of respective assessee but not initiation of search itself. It is further being held in similar facts and circumstances at J.M. Trading Corpn. v. Asstt. CIT [2008] 20 SOT 489 (Mum.) that "whether mere mentioning of name in panchnama does not lead to conclusion that a valid search was conducted against assessee - Held, yes - Whether mere search of premises owned by assessee but rented to another concern does not by any implication prove conduct of search as enumerated under section 132 against assessee - Held, yes" Similarly, it is held by special bench of Bangalore ITAT at C. Ramaiah Reddy 268 ITR 49 (AT) that "appellate authority have inherent powers to verify whether there was valid search and panchnama prepared were legal", Your kind attention is also drawn towards the findings of the Hn. Delhi High Court in response to assessee writ petition to annul the assessment being without jurisdiction at WP (C) no. 13249 of 2009 dated 10.11.2009 where it is held that "In view 'the....
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....ama executed at the time of conclusion of the search. The Commissioner of Income Tax(A) further observed that the Assessing Officer is of the view that the name of the appellant is covered in the Panchnama by using word "etc.". The Commissioner of Income Tax(A) further observed that it is presumed that no books of accounts/documents or other assets of the appellant/assessee were found/seized during the search conducted at 3rd floor, Global Aracade, M.G. Road, Gurgaon. The Commissioner of Income Tax(A) also noticed that it is a matter of record that the assessee is also having office at the first floor of the same building where survey u/s 133A of the Act was conducted. The Commissioner of Income Tax(A) relying on the judgment of 1TAT, Mumbai in the case of J.M. Trading Corpn. v. Asstt. CIT [2008] 20 SOT 489 (Mum.) and judgment of ITAT Delhi Bench in the case of Asstt. CIT v. Chetan Dass Lachman Dass [2010] 36 SOT 417 held that for framing assessment u/s 153A, what is relevant is that a search is initiated u/s 132 and is also conducted in the case of any person. The Commissioner of Income Tax(A) has also placed reliance on the judgment of ITAT Special Bench Bangalore in the case of ....